Decision Date: 09/08/95 Archive Date:
09/09/95
DOCKET NO. 92-06 609 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement of the appellant to recognition as the veteran's
surviving spouse for Department of Veterans Affairs (VA)
benefit purposes.
REPRESENTATION
Appellant represented by: American Red Cross
Appellee represented by: Army and Air Force Mutual Aid
Association
WITNESSES AT HEARING ON APPEAL
Appellant and her brother
ATTORNEY FOR THE BOARD
Hilary L. Goodman, Counsel
INTRODUCTION
The veteran had active service from October 1943 to February
1946 and from October 1953 until his death while on active
duty in June 1980.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from October 1990 and June 1991
administrative decisions of the VA Regional Office in
Cleveland, Ohio (RO), which denied the benefit sought on
appeal. The case subsequently was transferred to the VA
Regional Office in St. Petersburg, Florida, which conducted
a personal hearing in the matter and continued the denial of
the claim. The appellant appealed the adverse
determinations to the BVA, and the case was initially
received at the Board in May 1992. A BVA decision dated in
October 1993 remanded the case to the RO for additional
development, and the case was returned to the Board in
January 1995.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant essentially contends that the RO was incorrect
in not granting the benefit sought on appeal. She
maintains, in substance, that she and the veteran were
married in 1943 and that the veteran abandoned her and their
son in 1949. She relates that she was not at fault in the
separation between her and the veteran, and that she and the
veteran were never divorced prior to his death. She asserts
that the VA erroneously granted benefits to the veteran's
second wife without ascertaining whether the veteran's first
marriage had been terminated. Reference is made to the
evidence of record as supporting these contentions.
Therefore, a favorable determination has been requested.
CONTENTIONS OF APPELLEE ON APPEAL
The appellee essentially contends that the RO correctly
recognized her as the veteran's surviving spouse for VA
benefit purposes. She maintains, in substance, that she and
the veteran were married in 1950, and that she was unaware
of any impediment to her marriage to the veteran. She
relates that she lived with the veteran continuously for 30
years following their marriage, bearing four children who
will become illegitimate if the decision is not in her
favor. It is noted that the appellee was considered the
veteran's wife by the United States Air Force, and that upon
the veteran's death she arranged for his funeral, was the
beneficiary of his insurance policies, and received his
personal possessions. Reference is made to the evidence of
record as supporting these contentions. Therefore, an
affirmance of the RO's determination has been requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
supports the appellant's claim for recognition as the
veteran's surviving spouse for VA benefit purposes.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the RO.
2. The veteran married the appellant in December 1943 in
the State of New York.
3. The appellant and the veteran separated sometime in
1949.
4. The veteran married the appellee in September 1950 in
the State of Georgia.
5. The veteran and the appellee lived together from the
inception of their marriage until the veteran's death while
on active duty in Ohio in June 1980.
6. The separation of the veteran and the appellant in 1949
was procured by the veteran without the fault of the
appellant.
7. The veteran did not obtain a divorce from the appellant
prior to his death.
CONCLUSION OF LAW
The requirements for the appellant's recognition as the
veteran's surviving spouse for VA benefit purposes have been
met. 38 U.S.C.A. §§ 101(3), 103(a), 5107 (West 1991); 38
C.F.R. §§ 3.1(j), 3.50, 3.53 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Pertinent Legal Authority
In order to establish entitlement to VA death benefits as a
"surviving spouse" of a veteran, it is required that the
claimant was the veteran's spouse at the time of death, had
lived with the veteran continuously from the date of the
marriage to the date of the veteran's death, and has not
remarried or has not since the death of the veteran, and
after September 19, 1962, lived with another person and held
himself or herself out openly to the public to be the spouse
of such other person. See 38 U.S.C.A. § 101(3); 38 C.F.R. §
3.50.
The determination as to whether a claimant was the lawful
spouse of the veteran depends upon whether he or she had an
existing marriage to the veteran at the time of his death.
Pursuant to 38 C.F.R. § 3.1(j), the validity of the marriage
is to be determined by applying "the law of the place where
the parties resided at the time of marriage, or the law of
the place where the parties resided when the right to
benefits accrued. See also Sanders v. Brown, 6 Vet. App. 17
(1993). Even if the veteran and the spouse were separated
at the time of the veteran's death, the spouse will be
deemed to have continuously cohabitated with the veteran if
the separation was due to the misconduct of the veteran and
the spouse was without fault at the time of the separation.
See 38 C.F.R. § 3.53; Gregory v. Brown, 5 Vet.App. 108
(1993).
If an attempted marriage of a claimant to the veteran was
invalid by reason of a legal impediment of which the
claimant had no knowledge at the time the marriage was
entered into, the marriage will nevertheless be deemed valid
if the marriage occurred one year or more before the
veteran's death, or existed for any period of time if a
child was born of or before the purported marriage; the
claimant met the continuos cohabitation requirement pursuant
to 38 C.F.R. § 3.53; and no claim has been filed by a legal
surviving spouse who has been found entitled to gratuitous
death benefits other than accrued monthly benefits covering
a period prior to the veteran's death. See 38 U.S.C.A. §
103(a); 38 C.F.R. § 3.52.
II. Analysis
Most of the basic facts in this case either are not in
dispute or are clearly established by the evidence of
record. The veteran married [redacted], the appellant, in
December 1943 in the State of New York. One son was born of
this marriage in October 1945. Sometime thereafter, and
[redacted] testified that the date was 1949, the veteran
abandoned the appellant and their son. In September 1950,
the veteran married [redacted], the appellee, in the State of
Georgia. She and the veteran resided together, and produced
four children from l950 until the veteran's death in June
1980 while on active duty stationed in the State of Ohio.
[redacted] was awarded VA dependency and indemnity compensation
(DIC) benefits as the veteran's surviving spouse in June
1980, based on the application she filed following the
veteran's death. In February 1990, [redacted] filed a claim for
DIC benefits, and in that application she indicated that she
was not aware of the veteran's death until she filed a claim
for Social Security benefits. Information was requested and
received from the States of New York, Georgia, and Florida,
to ascertain whether there was any record of a divorce
between the veteran and [redacted]; the responses indicated that
there was no record of any divorce.
At this point, the Board would observe that there does not
appear to be any evidence that the appellant or the appellee
were aware of each other's existence or of the veteran's
marriage to the other. Indeed, it would appear that both
[redacted] and [redacted] are innocent parties in this case and are
blameless in the controversy before the Board. In its
simplest terms, the evidence demonstrates that the veteran
married twice without benefit of an intervening divorce.
Adjudicatively, the RO's October 1990 administrative
decision determined that:
The veteran married [the appellant] in December 1943. The
evidence of record does not show that this marriage was
terminated. The veteran married [the appellee] in September
1950 and lived with her until his death in Dayton, Ohio, in
June 1980. As Ohio is a minority State which presumes a
prior marriage to be in effect in the absence of evidence to
the contrary, [the appellant] must be considered the
veteran's legal widow.
To establish entitlement to VA benefits, a surviving spouse
must also satisfy the requirements for continuity of
cohabitation. The evidence concerning [redacted]'s separation
consists of her own and essentially self-serving statements
from her relatives. While no factual basis exists for
disbelieving her account of abandonment, her depiction of
the veteran as an irresponsible drunk does not square with
the character of a person who went on to a 27-year career as
an officer in the Air Force. On the other hand, it is to be
noted that the veteran could have contacted [redacted] at least
as late as 1953 at her New York address.
[redacted] has stated that she periodically contacted the
veteran's mother until 1980 to learn of [his] whereabouts.
The mother denied knowledge of his whereabouts, although she
presumably did know, if she had his and [redacted]'s marriage
photos. As to the Air Force letter she received in 1953,
[redacted] made one attempt to follow it up and then let the
matter drop.
The above facts are sufficient to conclude that [redacted]
actively acquiesced in the continuation of the separation,
i.e., intent to desert the veteran within the meaning of 38
C.F.R. § 3.53(b) is shown. She could easily have taken more
vigorous means to locate her husband but failed to do so....
It is the intent of the law that benefits be paid to that
individual who marries a veteran in good faith and performs
all the duties of a lawful spouse, in contradistinction to
another who has not, although the other may enjoy judicial
status as legal spouse. No decisive independent evidence
exists to support [redacted]'s contention or to overthrow the
weight of [redacted]'s 30 continuous years of marriage to the
veteran. [redacted]'s marriage to the veteran may therefore be
deemed valid for VA purposes.
That decision concluded that [redacted] was recognized as the
veteran's surviving spouse for VA benefit purposes. After
receiving additional evidence the RO issued a supplemental
administrative decision which essentially affirmed the
October 1990 administrative decision. The appellant
appealed the RO's decision to the BVA, and in an October
1993 decision the Board remanded the case for additional
development, including an analysis of the law in New York,
Georgia, and Florida as it related to the validity of
successive marriages, and a review of the case in light of
the Gregory decision.
After accomplishing the requested development, including
obtaining a District Counsel opinion, the RO reviewed the
case under the Gregory decision, and essentially affirmed
the prior determination that while [redacted] was the veteran's
legal spouse under State law, [redacted]'s marriage to the
veteran was deemed valid because [redacted] did not satisfy the
requirements for continuous cohabitation under 38 C.F.R. §
3.53.
The Board agrees with the RO's determination that [redacted] is
the veteran's legal spouse, but disagrees with the RO's
determination that [redacted]'s marriage to the veteran is
deemed valid. See 38 U.S.C.A. § 103(a); 38 C.F.R. § 3.52
(1994). In this regard, the Board finds that the RO has
misapplied the Gregory case as it relates to 38 C.F.R. §
3.53, and that [redacted] does satisfy the requirements for
continuous cohabitation.
When the veteran married [redacted] in 1953, he was a party to a
prior undissolved marriage to [redacted]. He was not legally
able to enter into a subsequent marriage. As the District
Counsel's opinion notes, under Georgia law, a previous
undissolved marriage renders an attempted second marriage
void. Furthermore, it would appear that regardless of which
State law applies concerning the presumption utilized to
determine which of the two marriages is presumed to be in
effect, the appellant prevails. As was noted in the
District Counsel opinion,
Under the law of Ohio and Georgia, the first of two
successive marriages will be presumed to remain in effect
unless it is established that the marriage was dissolved by
divorce or otherwise. Under the law of New York and
Florida, the second of two successive marriages will be
presumed valid and the prior marriage will be presumed to
have been terminated, unless the party challenging the
validity of the second marriage can produce evidence
sufficient to rebut the presumption that the prior marriage
was terminated.
Under the facts of this case, the appellee has submitted no
evidence which rebuts the presumption under the law of Ohio
and Georgia that the veteran's marriage to the appellant
remained in effect, and there is evidence of record (i.e.,
no record of divorce between [redacted] and the veteran) which
rebuts the presumption of the validity of the second
marriage and establishes the validity of the first marriage
under the law of New York and Florida.
With respect to the requirement of continuous cohabitation,
"[t]he statement of the surviving spouse as to the reason
for the separation will be accepted in the absence of
contradictory information." 38 C.F.R. § 3.53(b). While the
appellant may have, at one point, characterized the veteran
as manifesting behavior which the RO found was inconsistent
with the veteran's later dated behavior as an Air Force
officer, the simple fact of the matter is that the
appellant's statements and testimony to the effect that the
veteran abandoned her and their child in 1949 and never
returned are uncontradicted.
The RO erroneously indicated that the Gregory decision
"removed the necessity of fault in the cause of the
separation. In doing so, therefore, the Court granted a
presumption of continuous cohabitation, without
consideration of fault on the part of either party...and the
presumption can be overcome by affirmative evidence that
refutes the presumption." See supplemental statement of the
case dated August 30, 1994.
On the contrary, Gregory stands for the proposition that the
reason for the separation or the fault of either party is to
be determined at the time of the separation.
Pursuant to the first part of the test of § 101(3) and §
3.50(b)(1), the surviving spouse is deemed to have
continuously cohabited with the veteran if the separation
was not due to the fault of the surviving spouse. The only
evidence of fault pointed to by the BVA was that the
appellant had sought to terminate her marriage to the
veteran and that she had failed to reconcile with the
veteran following the entry of the interlocutory decree and
prior to the veteran's death. [Citation omitted.]
The language of § 101(3) and § 3.50(b)(1) does not indicate
that the without fault requirement is a continuing one.
Rather, under this language, fault or the absence of fault
is to be determined based on an analysis of the conduct at
the time of the separation. Certain conduct subsequent to
the time of separation may be relevant in an appropriate
case with respect to the question of fault at the time of
separation, but the mere acts of seeking divorce and failing
to reconcile are not in and of themselves relevant to such
question, and, standing alone, do not constitute evidence of
fault at the time of separation.... The Court concludes
that since there is no evidence of fault on the part of
appellant at the time of the separation, she was not, as a
matter of law, at fault at the time of the separation under
§ 101(3) and § 3.50(b)(1).
Gregory, 5 Vet.App. at 112. In the instant case, there is
no evidence that the appellant was at fault in the
separation. Indeed, her contention that the separation was
"procured by the veteran" in that he simply abandoned her
and their son is uncontroverted. Moreover, consistent with
Gregory, no degree of fault can be ascribed to her in
acquiescing in the continuation of the separation. The
appellant was not required to pursue every possible avenue
to locate the veteran in the hope that the veteran would
desire a reconciliation. Indeed, the veteran's actions in
abandoning [redacted] and their child and subsequently remarrying
would clearly indicate that such a hope would not have been
realistic.
Given this analysis, the Board finds that the appellant was
the veteran's legal spouse at the time of his death, and
that the requirements for continuous cohabitation have been
met. As such, the appellee's marriage to the veteran may not
be presumed to have been deemed valid. Simply put, although
both [redacted] and [redacted] were "wronged" by the veteran ([redacted]
by his abandonment and [redacted] by his marriage to her without
benefit of a divorce), the Board can only observe that the
appellant was wronged first. Given that fact, and in view
of the applicable case law, statutes, and regulations, the
appellant is entitled to recognition as the surviving spouse
of the veteran for VA benefit purposes.
ORDER
Entitlement of the appellant to recognition as the veteran's
surviving spouse for VA benefit purposes is granted.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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